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<title>FSFE - Software Patents in Europe</title>
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<center><h1>Software Patents in Europe</h1>
[<a href="/campaigns/swpat/swpat.html">Introduction</a> | Background | <a
href="/campaigns/swpat/status.html">Status</a> | <a
href="/campaigns/swpat/documents.html">Further Reading</a>]
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<h2>What are patents?</h2>
<p>The idea of patents goes back to the medieval monarchs who conferred
rights and privileges in the form of open letters (latin "litterae
patentes") bearing their royal seal. Such patents on procedures to make
glass, for instance, were commonly granted on the basis that this skill
be taught to others.</p>
<p>Later, democratic governments took the place of monarchs, but the basic
idea remained the same: a limited monopoly was granted for a certain
invention or process in exchanged for making that invention or process
public. That way others could learn from it and further develop new
inventions and processes.</p>
<p>The underlying principle of patents and their justification is that
they are monopolies which are granted by society for the sake of
benefitting society.</p>
<h2>What are software patents?</h2>
<p>Software itself is implemented logic. Consequently, software patents are
monopolies granted on implemented logic. It is important to understand
that such monopolies are not on the implementation itself, which is
covered by Copyright, but on the underlying logic of the
implementation.</p>
<p>Therefore, a software patent manifests a monopoly on specific calculation
methods, which makes mathematical laws, logical rules and business
processes property of companies, effectively disappropriating society
of its grown knowledge.</p>
<p>The effects of this can be dramatic. Not only does every program
literally embed thousands of ideas that could be subject to software
patents: While patents in other fields normally don't reach far outside
the field they were granted in, software patents affect all areas and
applications of software equally.</p>
<p>Since software itself is increasingly becoming a determining factor,
software patents have an incredible reach and more or less cover all
areas of economy and society.</p>
<p>Software patents are affecting the electricity industry as much as they
affect insurance companies. They harm IT companies like IBM and
research institutes like Fraunhofer. They are even bad for health.</p>
<p>For good reason did the European Patent Convention (published 1973)
explicitly state that the field of programs for computers, i.e.
software, is excluded from patentability.</p>
<p>Software patents are harmful to innovation, economy and society, so they
lack justification.</p>
<h2>Why would anyone want them?</h2>
<p>Software patents were seen as a convenient tool by large companies in
the United States to defend themselves against competition:</p>
<p class="quote">"If people had understood how patents would be granted when most of
today's ideas were invented and had taken out patents, the industry
would be at a complete stand-still today. [...] A future start-up
with no patents of its own will be forced to pay whatever price the
giants choose to impose. That price might be high: Established
companies have an interest in excluding future competitors."
<br />
<div align="right">
William H. Gates<br />
Internal Microsoft Memo (1991)<br />
[Fred Warshofsky, The Patent Wars (1994)]
</div></p>
<p>It should be understood that while the price of software patents is paid
by all companies, big and small, the big ones can afford paying the
price a little longer as they have deeper pockets. Also, they believe
that it is worth the price to rid themselves of competition.</p>
<p>Paying the price for the system, companies obviously want their return on
investment, which is why the Business Software
Alliance (BSA), a lobbying organisation for huge U.S. companies, has been pushing strongly for the adoption
of software patents in Europe, without
European involvement.</p>
<p>Europe as a region is still gaining on the U.S. in terms of IT industry
as it is free from the burden of software patents that the United
States imposed on themselves.</p>
<p>The small and medium software companies have made Europe a central
player in innovation, while in the U.S., innovative software
development is limited to a few monopolists.</p>
<h2>The European Patent Office (EPO)</h2>
<p>Another group that benefits from software patents are patent lawyers,
because patent lawyers are needed to apply for a patent, to grant a
patent and to contest a patent in court. From their perspective,
software patents offer an area of almost unlimited patentability
without the need for development or research.</p>
<p> Of course, patent lawyers are also found in the
European Patent Office (EPO), which has prepared the ground for the
introduction of software patents by granting roughly 30,000 software
patents -- acting clearly outside its mandate and disregarding the
European Patent Convention from 1973. </p>
<p>Since patent lawyers are also found in many ministries across Europe and
not wanting to step on the toes of the EPO, several European
politicians are now trying to legitimize these patents by declaring
these to be "computer implemented inventions."</p>
<p>That is why the directive in question is called the directive on
"patentability of computer implemented inventions."</p>
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